CTM v R [2007] NSWCCA 131

CTM v R [2007] NSWCCA 131

The appeal against conviction failed because the repeal of s 77(2) of the Crimes Act 1900 did not create or revive a Proudman v Dayman common law defence of honest and reasonable mistake of age for child sexual assault offences under s 66C; the legislative history, context and purpose showed an intention that no such defence apply. The verdict under s 66C(3) was not unreasonable. The sentence was invalid because the District Court failed to apply the Children (Criminal Proceedings) Act 1987 to an offender who was under 18 at the time of the offence and whose offence was not a serious children's indictable offence.

Jurisdiction
Australia
Judgment Date
24 May 2007
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal against conviction dismissed; application for leave to appeal against sentence granted; appeal against sentence allowed; sentence quashed; matter remitted to the District Court.
Legal Topics
['child Sexual Assault' 'honest and Reasonable Mistake of Age' 'proudman V Dayman Defence' 'absolute Liability and Strict Liability' 'unreasonable Verdict' 'children (criminal Proceedings) Act 1987']
['criminal Law' 'statutory Interpretation' 'criminal Procedure' 'sentencing'] ['child Sexual Assault' 'honest and Reasonable Mistake of Age' 'proudman V Dayman Defence' 'absolute Liability and Strict Liability' 'unreasonable Verdict' 'children (criminal Proceedings) Act 1987']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ['Whether repeal of s 77(2) of the Crimes Act 1900 made available a common law defence of honest and reasonable mistake of age to an offence under s 66C(3).' 'Whether the trial judge erred in directing the jury that the accused bore the onus of proving honest belief as to age on the balance of probabilities.' 'Whether the guilty verdict under s 66C(3) was unreasonable in light of acquittals on more serious alternatives.' 'Whether the sentence was invalid because the sentencing judge failed to apply the Children (Criminal Proceedings) Act 1987.']

Ratio Decidendi

The appeal against conviction failed because the repeal of s 77(2) of the Crimes Act 1900 did not create or revive a Proudman v Dayman common law defence of honest and reasonable mistake of age for child sexual assault offences under s 66C; the legislative history, context and purpose showed an intention that no such defence apply. The verdict under s 66C(3) was not unreasonable. The sentence was invalid because the District Court failed to apply the Children (Criminal Proceedings) Act 1987 to an offender who was under 18 at the time of the offence and whose offence was not a serious children's indictable offence.

Court Disposition

Appeal against conviction dismissed; application for leave to appeal against sentence granted; appeal against sentence allowed; sentence quashed; matter remitted to the District Court.

Orders

  • ['The appeal against conviction is dismissed.' 'The application for leave to appeal against sentence is granted.' 'The appeal against sentence is allowed and the sentence quashed.' 'The matter is remitted to the District Court.']